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ending a joint tenancy agreement question
Comments
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I appreciate the comments. From Druces:
"Landlords should ensure that recovery of double value or double rent from their tenants in the circumstances outlined above is carried out hand in hand with the process of obtaining vacant possession of the premises. If the tenant remains in possession of the premise following expiry of the tenancy and the landlord accepts rent from the tenant in respect of the tenant’s occupation without taking steps to obtain vacant possession, a new periodic tenancy could be created, entitling the tenant to remain in occupation of the premises on the terms of the new periodic tenancy and, potentially, subject to the security of tenure provisions of the Landlord and Tenant Act 1954."
So my point that it is possible a new perdiodic tenancy has began is probably correct. And because they haven't tried to take possession of the property in any capacity (on the contrary they want her to stay), any claim for Double Rent would be void it seems (as it should be as that is ridiculous in the circumstances).
Even if this is principally concerning business contracts, would the principles not hold for residential?
And secondly, is there any case law where they have been successful passing double rent in the circumstances outlined above?
Thanks
I've looked at your only other post. You seem to actually post purely to argue.
I'm sure your research skills will allow you to find the relevant case law; be aware the meaning of words has changed somewhat from 1737.
It's unclear what you hope to achieve by posting here. As has been said (repeatedly) this will only really matter if or when it goes to court; at which point you're perfectly entitles to represent the other person (as along as they are present) as a lay representative.0 -
I've looked at your only other post. You seem to actually post purely to argue.
I'm sure your research skills will allow you to find the relevant case law; be aware the meaning of words has changed somewhat from 1737.
It's unclear what you hope to achieve by posting here. As has been said (repeatedly) this will only really matter if or when it goes to court; at which point you're perfectly entitles to represent the other person (as along as they are present) as a lay representative.
There's no need to be sarcastic or obnoxious, but if that's your style so be it. I was genuinely seeking some basic advice for a friend (of course it is not the same as full legal advice but its a starting point and the answer may have been obvious without seeking costly legal help, which he is now doing).
My friend simply wanted to check what should be some very simple questions, but it seems it is far from clear (a dire failure of the English legal system). If he is still classed as a tenant legally he needs to know this obviously as he fully intended on ending the tenancy with his notice and thus any liability. His EA and him definitely don't think he's a tenant still, so you can see why this is a problem.
According to what has been written, I think these points are far from clear:- Did the joint tenancy end for both of them after the notice period ended? It is claimed in this thread it did not end because she remains, which contradicts Shelter and his legal advice so far.
- Is my friend (not his gf) still legally a tenant in the property, after he validly served a notice and left during this time? It is claimed in this thread he is still a tenant, which contradicts Shelter and the legal advice so far.
- Did a new tenancy arise after the tenancy period ended but his ex gf remained and the EA is taking rent without trying to evict her/take posession of property? It is claimed in this thread one did not arise, but legal websites suggest at least in terms of commercial tenancies that a new tenancy would indeed arise if they are accepting rent from the tenant which they are (can't see why this is different in residential).
- Can double rent can be charged even though the LL and EA haven't tried to take possession of the property, have written acceptance that she remains as the sole tenant, and are accepting regular payments? This thread suggests yes, which contradicts other legal websites which suggest they would have to be treating the tenant as a trespasser/be actively trying to take possession of the property and not accepting her rent.
Shelter state in Re to Double Rent:
"In the event that a tenant remains in occupation as a trespasser after the valid notice to quit s/he served takes effect, the landlord can claim ‘double rent’ (in the form of mesne profits or damages for use and occupation) for the period the former tenant remains in occupation.[5] This will apply where a joint tenant has unilaterally ended the joint tenancy by serving a valid notice to quit and the other tenant stays in the property.
The landlord can only claim double rent if s/he does not give the former tenant permission to remain and treats the former tenant as a trespasser." - It is claimed the fact they are taking payments/accept she is now the sole tenant has no legal meaning, but this would surely be viewed by the court as evidence that a new tenancy has arisen. If not, they would be actively trying to evict her and not accepting her rent.
Disclaimer
The information I post is for general informational purposes only and does not constitute legal, medical or professional advice of any kind. I accept no liability for the accuracy of the information reported.0 -
There's no need to be sarcastic or obnoxious, but if that's your style so be it. - Neither. I was highlighting to other well meaning posters so they are aware before getting dragged in I was genuinely seeking some basic advice for a friend (of course it is not the same as full legal advice but its a starting point and the answer may have been obvious without seeking costly legal help, which he is now doing). - it seems that despite what everyone has said, you know better. so I bow to your superior knowledge
My friend simply wanted to check what should be some very simple questions, but it seems it is far from clear (a dire failure of the English legal system). - it is a system which has existed for more than a millennia, so in fairness... If he is still classed as a tenant legally he needs to know this obviously as he fully intended on ending the tenancy with his notice and thus any liability. - despite several people telling you otherwise, you persist in this notions; so sure why not. His EA - he doesnt have an agent and him definitely don't think he's a tenant still, so you can see why this is a problem.
According to what has been written, I think these points are far from clear: - literally answering for the last time, as this has been explained already- Did the joint tenancy end for both of them after the notice period ended? It is claimed in this thread it did not end because she remains, which contradicts Shelter and his legal advice so far. - a tenancy begins when you take occupation of a property; it ends when you return it. The tenant has not returned it, it has not ended
- Is my friend (not his gf) still legally a tenant in the property - yes , after he validly served a notice and left during this time? It is claimed in this thread he is still a tenant, which contradicts Shelter and the legal advice so far. - no it contradicts your understanding of shelter. As I have asked numerous times and you haven't answered, I'm going to assume the professional advice is in fact nothing of the sort
- Did a new tenancy arise after the tenancy period ended but his ex gf remained and the EA is taking rent without trying to evict her/take posession of property? - no It is claimed in this thread one did not arise, but legal websites suggest at least in terms of commercial tenancies that a new tenancy would indeed arise if they are accepting rent from the tenant which they are (can't see why this is different in residential). - they are accepting rent from the tenant, just as they did when this tenancy began. BOTH OF THEM ARE ONE TENANT - that's capitalised as it was explained so early on I wanted to reiterate this
- Can double rent can be charged even though the LL and EA haven't tried to take possession of the property - they are not entitled to, at this point, take possession. As I mentioned that would be a criminal offence , have written acceptance that she remains as the sole tenant, and are accepting regular payments? This thread suggests yes, which contradicts other legal websites which suggest they would have to be treating the tenant as a trespasser/be actively trying to take possession of the property and not accepting her rent. - an opinion piece from a 'law firm' who believe that a landlord can still serve a notice to quit.... I'd rather ask my 7 year old...
Shelter state in Re to Double Rent:
"In the event that a tenant remains in occupation as a trespasser after the valid notice to quit s/he served takes effect, the landlord can claim ‘double rent’ (in the form of mesne profits or damages for use and occupation) for the period the former tenant remains in occupation.[5] This will apply where a joint tenant has unilaterally ended the joint tenancy by serving a valid notice to quit and the other tenant stays in the property.
The landlord can only claim double rent if s/he does not give the former tenant permission to remain and treats the former tenant as a trespasser." - It is claimed the fact they are taking payments/accept she is now the sole tenant has no legal meaning, but this would surely be viewed by the court as evidence that a new tenancy has arisen. If not, they would be actively trying to evict her and not accepting her rent.
And finally, for the last time. Doesn't matter what I think, or anyone else; unless their sitting in the county court.
I mean this most genuinely, if it gets to that point, please tell your friend to hire an actual solicitor.0 -
I think there's probably a lot more background to this issue then we probably know but...
If the position is that one tenant giving the legal notice does not end the tenancy then this is at odds with the 2015 government briefing to parliament which stated "If one party to a joint tenancy serves a notice to quit this has the effect of terminating the whole of the tenancy leaving the tenant in occupation at risk of eviction by the landlord. This position has been established in several court cases, most recently Sims v Dacorum Borough Council [2014] UKSC 63"
In Sims it was found that,
Where a tenancy of land is held by more than one person, those persons hold the tenancy jointly. In Hammersmith and Fulham LBC v. Monk [1992] AC 478 ("Monk"), the House of Lords unanimously held that, where such a tenancy is a periodic tenancy, which can be brought to an end by a notice to quit, the common law rule is that, in the absence of a contractual term to the contrary, the tenancy will be validly determined by service on the landlord of a notice to quit by only one of the joint tenants
I no longer work in Council Tax Recovery but instead work as a specialist Council Tax paralegal assisting landlords and Council Tax payers with council tax disputes and valuation tribunals. My views are my own reading of the law and you should always check with the local authority in question.0 -
I think there's probably a lot more background to this issue then we probably know but...
If the position is that one tenant giving the legal notice does not end the tenancy then this is at odds with the 2015 government briefing to parliament which stated "If one party to a joint tenancy serves a notice to quit this has the effect of terminating the whole of the tenancy leaving the tenant in occupation at risk of eviction by the landlord. This position has been established in several court cases, most recently Sims v Dacorum Borough Council [2014] UKSC 63"
In Sims it was found that,
Where a tenancy of land is held by more than one person, those persons hold the tenancy jointly. In Hammersmith and Fulham LBC v. Monk [1992] AC 478 ("Monk"), the House of Lords unanimously held that, where such a tenancy is a periodic tenancy, which can be brought to an end by a notice to quit, the common law rule is that, in the absence of a contractual term to the contrary, the tenancy will be validly determined by service on the landlord of a notice to quit by only one of the joint tenants
They're not at odds with each other. Mrs Sims served notice to end the joint tenancy. Mr Sims did not move out. The landlord couldn't simply turf Mr Sims out even though valid notice had been served meaning the landlord had to go to court to get a possession order. A new tenancy with Mr Sims solely in his name didn't start after the notice period to end the joint tenancy was up, something the OP seems to think happens based on misunderstanding Shelter. The landlord could, if (s)he wished charge the joint tenant double rent under the Distress for Rent Act 1737 but seems to have settled for the possession order.0 -
Lover_of_Lycra wrote: »They're not at odds with each other. Mrs Sims served notice to end the joint tenancy. Mr Sims did not move out. The landlord couldn't simply turf Mr Sims out even though valid notice had been served meaning the landlord had to go to court to get a possession order. A new tenancy with Mr Sims solely in his name didn't start after the notice period to end the joint tenancy was up, something the OP seems to think happens based on misunderstanding Shelter. The landlord could, if (s)he wished charge the joint tenant double rent under the Distress for Rent Act 1737 but seems to have settled for the possession order.
But that gives rise to a fundamentally ridiculous situation if what you are saying is true. Either a joint tenant has the legal right to end the joint tenancy by giving a NTQ (which applies to all tenants) or they do not. The government briefing paper, Shelter and his initial legal advice all stated they do have that right to terminate the tenancy for all. There was no mention that if one remains the same tenancy will subsist (in fact to the contrary they said it would terminate).
If it is accepted by the courts that a single tenant can unilaterally end the tenancy for all, how can it be possible that by one other tenant remaining past the notice period, that the other joint tenant could in effect void the NTQ and make the tenancy subsist if they simply don't leave? The joint tenant therefore would not really have the right to terminate the tenancy, if the same tenancy continues if one of the other tenants remain past the notice! Surely it must terminate the tenancy for all, and whatever tenancy they are on past the notice period if one remains is not the same tenancy as before...
From shelter again:
An NTQ served by only one joint tenant is sufficient to end a periodic tenancy (or licence) for all joint tenants. It is not necessary for any other joint tenant to consent or have knowledge of the service of the notice.[13] The courts have held that one joint tenant unilaterally serving an NTQ does not breach the rights under Article 8 of the European Convention on Human Rights and Article 1 of its First Protocol of the joint tenant who did not serve the notice.[14]
An NTQ served on only one of the joint landlords is sufficient to end a periodic joint tenancy.
It doesn't state, but only if they all vacate.Disclaimer
The information I post is for general informational purposes only and does not constitute legal, medical or professional advice of any kind. I accept no liability for the accuracy of the information reported.0 -
But that gives rise to a fundamentally ridiculous situation if what you are saying is true. Either a joint tenant has the legal right to end the joint tenancy by giving a NTQ (which applies to all tenants) or they do not. The government briefing paper, Shelter and his initial legal advice all stated they do have that right to terminate the tenancy for all. There was no mention that if one remains the same tenancy will subsist (in fact to the contrary they said it would terminate).
If it is accepted by the courts that a single tenant can unilaterally end the tenancy for all, how can it be possible that by one other tenant remaining past the notice period, that the other joint tenant could in effect void the NTQ and make the tenancy subsist if they simply don't leave? The joint tenant therefore would not really have the right to terminate the tenancy, if the same tenancy continues if one of the other tenants remain past the notice! Surely it must terminate the tenancy for all, and whatever tenancy they are on past the notice period if one remains is not the same tenancy as before...
From shelter again:
An NTQ served by only one joint tenant is sufficient to end a periodic tenancy (or licence) for all joint tenants. It is not necessary for any other joint tenant to consent or have knowledge of the service of the notice.[13] The courts have held that one joint tenant unilaterally serving an NTQ does not breach the rights under Article 8 of the European Convention on Human Rights and Article 1 of its First Protocol of the joint tenant who did not serve the notice.[14]
An NTQ served on only one of the joint landlords is sufficient to end a periodic joint tenancy.
It doesn't state, but only if they all vacate.
What do you mean, "if what you are saying is true?" You can read the details of the Sims versus Dacorum case yourself which CIS has kindly provided the link for.
Why are you so hell bent on arguing this with a bunch of internet strangers? How is this helping your friend? What is the actual issue your friend is facing right now?0 -
Lover_of_Lycra wrote: »What do you mean, "if what you are saying is true?" You can read the details of the Sims versus Dacorum case yourself which CIS has kindly provided the link for.
Why are you so hell bent on arguing this with a bunch of internet strangers? How is this helping your friend? What is the actual issue your friend is facing right now?
Well he needs to know if he has ended the tenancy and whether he is still legally classed as a tenant! That's a fairly reasonable thing to know as he doesn't want any liability for rent or anything else to do with the property like council tax.Disclaimer
The information I post is for general informational purposes only and does not constitute legal, medical or professional advice of any kind. I accept no liability for the accuracy of the information reported.0 -
Well he needs to know if he has ended the tenancy and whether he is still legally classed as a tenant! That's a fairly reasonable thing to know as he doesn't want any liability for rent or anything else to do with the property like council tax.
Then he should have ensured vacant possession by the end of the notice period or that his ex had signed a new tenancy agreement in her name only. Has he asked his ex if she has signed a new agreement? Was a deposit taken at the start of the joint tenancy, if so what has happened to it?0 -
Lover_of_Lycra wrote: »Then he should have ensured vacant possession by the end of the notice period or that his ex had signed a new tenancy agreement in her name only. Has he asked his ex if she has signed a new agreement? Was a deposit taken at the start of the joint tenancy, if so what has happened to it?
She didn't want to go. She didn't have enough time to find a new place and didn't want to leave yet, so he couldn't force her.
She definitely has not signed any new agreement. He has agreed for the deposit to be given to her.Disclaimer
The information I post is for general informational purposes only and does not constitute legal, medical or professional advice of any kind. I accept no liability for the accuracy of the information reported.0
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